- Alert: Court of Appeal rejects carrier's appeal regarding liability for misdelivered cargo (MSC Mediterranean Shipping Company S.A. v Glencore International AG)
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Commercial analysis: The Court of Appeal unanimously dismissed the carrier’s (MSC) appeal against a decision that it was liable for misdelivered cargo. MSC had contracted with the claimant (Glencore) to carry goods by sea from Australia to Antwerp and this case arose in connection with use of an electronic release system (ERS). Under the relevant ERS, carriers did not issue paper delivery orders or release notes against bills of lading, but instead provided computer generated electronic numbers (or import pin codes), which holders of bills of lading presented to the terminal to take delivery of their goods. The collecting driver would enter the pin codes manually in order to gain access to the terminal and enable him to collect the containers. In 2012, MSC emailed the import pin code to Glencore’s agents for delivery of certain goods under the bill of lading. However, when the agent’s hauliers went to collect the containers in Antwerp they found that two had already been collected. It was common ground that those two containers were delivered to unauthorised persons. Glencore claimed damages against MSC on the grounds that under the relevant contract MSC should have released the cargo only on presentation of the bill of lading or a delivery order given in exchange for it. In July 2015 Andrew Smith J gave judgment in favour of Glencore. This case provides a further reminder of the obligations and potential liability of carriers.
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